Entitlement both ways?

[Buck52]

This might have been answered on her a million times

but can a Veteran be paid both ways??...Direct Service Connection  vs  Non Direct Service Connection?

Say a veteran has arthritics in both knees and it disable him from time to time  but no way to get it service connected?

He didn't seem to have it while in the military (so no records), but got it after he got out, if the VA gives him pain med's for it.....>.should he file a non service connected claim?

Or for any other condition that happens after military  and was never mention while in the military.?

or does he have a chance at some help from the VA? As for as Filing a Claim?

Do you think VA will shoot this out of the water?  

 

[brokensoldier244th]

Like a pension rather than disability? I didnt think you could collect both. 

 

[broncovet]

I agree with Broken Soldier.  There are at least 3 ways to get SC:

1.  Direct

2.  Secondary to an already SC condition

3.  Presumptive.  

Its possible to qualify for all 3, but you would only get paid for "1" of these.  

NSC normally applies, as brokensoldier posted, to pension.  The Veteran collects the greater of pension or compensation, but not both.  

Example:

    I was 40 percent SC and eligible for pension at the same time.  I got the greater of the 2, which, at that time, was NSC pension.  I was still SC, and eligible for additional benefits such as by applying for an increase, as well as other "40 percent" disabled benefits, but I did not get 2 paychecks, only NSC pension.  

 

[broncovet]

All this said, Berta had a recent post where she is adamant you "can" collect benefits for a SC condition "and also" 1151 benefits, such as if VA injured you while in th hospital.  Even tho you can "theoreticallY collect 1151 and also SC compensation, I dont know of anyone who has "actually done" this.  For example, I know of "no one" who gets 100 percent under 1151 AND an additional 100 percent SC compensation.  

[Buck52]

Roger that bronco & brokensolider...kinda what I was thinking..

I knew it may not be paid at the same time but more on the pension side, if the Veteran is not Service Connected for anything? It is possible he could get a percent via pension without being S.C.....? 

if this is right ?

what forms would he use for this?  21-526 ez  I know the VA Computers kick back the claim if we use the wrong form..to be generated as they say now days  or read by the computer..which is something I know nothing about.

Thanks

Edited December 16, 2018 by Buck52

[Berta]

Broncovet- to clarify, GC Pres Op # 08-97, which I have attached link to and excerpts from here-clearly states that a vet who is SCed at 100% under 1151, and also SCed at 100% for direct SC can obtain ALL monetary awards for those two separate issues.

We actually got a new member here who seems to be in the same position.

You are right that no one has ever used that Pres Op - I am prepared to fight it even beyond the CAVC.

The Pres Op has never been withdrawn or altered and does not say this applies to those vets with 100% under SC and 1151,' except for Rod Simmons or his accrued eligible widow.'

The Pres op was prepared when 351 became 1151 under Gardner-and within months after the GC settled with me for wrongful death.(1997) and then after I had to call the OGC after my 1151 was again denied, that 1151 was awarded.

Here is a key point :

 

"In that opinion, we clarified the statement in VAOPGCPREC 80-90 that “all veterans’ monetary benefits payable for service-connected disability or death” are available for disabilities compensated under 38 U.S.C. § 351.  We explained that the statement “was generally intended to encompass all disability and death compensation and DIC benefits,” but not necessarily all other ancillary benefits available to veterans suffering from service-connected disabilities.  VAOPGCPREC 100-90, at 2-3.  We stated that “section 351 entitlement may also provide entitlement to certain ancillary and special service-connected benefits depending upon congressional intent.”  Id. at 3 (emphasis in original).”

OGC Pres Op 08-97   ( 80-90 says the same thing but 351 was changed to 1151 and had to be clarified again by the OGC- due to the Gardner Moratorium  I was in.)

I dont care about the additional DIC-and I get DIC and every ancillary benefit there is but  my husband made me promise many years ago to go after them for everything I was eligible for if they killed him.His 1151 was pending. He died 4 hours later, very suddenly-and he was right-I went after them and proved  they killed him.

As I mentioned, it did seem that the Nehmer Division paid 6 months of the 100% P & T under 1151, due tyo th Pres Op but the director of my VARO - who I have dropped a dime on, told me he died with 100% Total but Not Permanant for the 1151 stroke. This was not an issue when they awarded 100% P & T for his SC PTSD.

This is the crap they could pull on any surviving spouse.

Say the vet had 100% SC for ten continuous years or more but dies from a NSC. The director of my VARO could call up and tell the widow he was Total but NOT Permanent when he died, and deny the claim, under the ten year rule.My RO director called me twice to accept that BS.

All 100% disabilities , if continuous to death, become permanant after death.I sent them a BVA statement to that affect.

All of the eviddence they ignored ( most from VA itself) says his stroke was Total AND Permanant.As an 1151 issue, I proved VA provided no care prior to it or any significant afterwards for the stroke, and  proved His HBP was 1151 as well.3 years ago,.

Malpractice has a long consequence that costs the VA $$$$$$$$$$$.

But they are taking away our 1151 and FTCA rights by populating the VAMC with contractors, not VA employees, yet who say they are doctors and they work for the VA.

The Choice program is a mess, but any vet who gets Medicare has the best choice they might ever make-to leave the VA system and get a real doctor.

MY neighbor( 20 years Ret,) can hardly walk.VA told him he has so much arthiritis in his hip he cannot get a hip replacement.

Either he refused to get one long ago, or they simply never considered one, as his arthritis advanced. I am sure it could be SCed to his 10% SC he has now (DDD) or   he is too afraid of them  to file 1151. So be it.

He could get CRDP if he gets the 10% to 50% or more.

Per what he says, his SSDI is solely for the 10%. yet he wont go back to his POA to re open his claim.

 

 

 

 

 

 

Edited December 17, 2018 by Berta

[broncovet]

Berta...Im not doubting you.  I do think that the VA has a set of "legal" rules, then they have another set of "what happens".     VA gets away with this for several reasons, and they "protect" these reasons adamantly:

1.  The VA has its own VAOIG to loosely enforce (read they dont enforce their own rules).

2.  Chevron Deference aka Aur Defense means that "Agency interpretation" prevails under most circumstances.  That is, the VA decides how to interpret their own rules.  

3.  The VA has 3 sets of rules:  The M21 (which VA uses but is largely inadmissable in court), the USC and the CFR.  Given this, the VA adjuticates per M21, but the courts will only enforce USC and CFR.  

4.  A "culture of delay and denial" inside VA, especially with VA execs.  Make no mistake:  Things like bonuses, VA parties, lucrative VA contracts compete with Veterans for VA dollars.  When given a chance, VA execs almost always choose bonuses, parties, lucrative contracts over the needs of Veterans.  

5.  Waste inside VA.  Its well known that government officials have no problem squandering money instead of returning unused budget funds especially near the end of the year.  The thinking is, if we return unspent/unallocated money, then the budget will be cut next year.  So, the preferred alternative is to squander the money...and never on Veterans, either.